Alber I. and Georgette H. Said - Page 11

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          taxpayer’s level of education is a relevant factor.  See                    
          Niedringhaus v. Commissioner, supra at 211; Stephenson v.                   
          Commissioner, 79 T.C. 995, 1006 (1982), affd. 748 F.2d 331 (6th             
          Cir. 1984).                                                                 
               Although respondent must prove an underpayment of tax in               
          support of the fraud penalty, respondent’s burden is met here by            
          proof of unreported income.  An underpayment will exist where               
          unreported gross receipts are not exceeded by costs of goods sold           
          and deductible expenses.  In establishing the underpayment, the             
          Commissioner may not simply rely on the taxpayer’s failure to               
          prove error in the deficiency determination.  DiLeo v.                      
          Commissioner, 96 T.C. 858, 873 (1991), affd. 959 F.2d 16 (2d Cir.           
          1992); Parks v. Commissioner, 94 T.C. 654, 660-661 (1990); Otsuki           
          v. Commissioner, 53 T.C. 96, 106 (1969).  However, upon clear               
          proof of unreported receipts, even in a criminal case, the burden           
          of coming forward with offsetting costs or expenses generally               
          shifts to the taxpayer.  See Siravo v. United States, 377 F.2d              
          469, 473-474 (1st Cir. 1967); Elwert v. United States, 231 F.2d             
          928, 933 (9th Cir. 1956).                                                   
               Petitioner stipulated that he had unreported gross receipts            
          for all 3 tax years.  Petitioner has failed to show that the                
          receipts were offset by deductible costs or expenses.  As a                 
          result, it is established by clear and convincing evidence that             
          petitioner had an underpayment of tax for each of the years.                






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